Leonard v. Palmer, Case Number: 13-CV-13505

• Decision Date: 07 August 2015
• Docket Number: Case Number: 13-CV-13505
• Parties: DONTE LEONARD, Petitioner, v. CARMEN D. PALMER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DONTE LEONARD, Petitioner, v. CARMEN D. PALMER, Respondent.

Case Number: 13-CV-13505

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 7, 2015

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. INTRODUCTION

Petitioner Donte Leonard, a Michigan Department of Corrections prisoner confined at the Chippewa Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2007, he was found guilty by a jury in Oakland County Circuit Court of assault with intent to rob while armed, Mich. Comp. Laws § 750.89, conspiracy to commit armed robbery, Mich. Comp. Laws §§ 750.157a & 750.529, first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and conspiracy to commit first-degree home invasion, Mich. Comp. Laws §§ 750.157a & 750.110a(2). He challenges his convictions on the grounds that the prosecutor presented insufficient evidence to sustain the convictions,the trial court erred in refusing to charge the jury on accessory after the fact, the trial court erred in denying Petitioner's motion to quash, offense variables 1, 2, 10, and 13 were incorrectly scored, and the trial court improperly admitted the audiotape of a 911 call. The Court concludes that Petitioner is not entitled to the issuance of the writ of habeas corpus. Accordingly, the Court will deny the petition and will decline to issue a certificate of appealability.

II. BACKGROUND

Petitioner's convictions arise from a home invasion and armed robbery occurring at the home of Jennifer Locke during the early morning hours of January 25, 2010. Petitioner was tried in Oakland County Circuit Court with co-defendants Kyle Lester and Justin Sanford. The trial court ordered two separate juries, one for Lester, and one for Sanford and Leonard. The Michigan Court of Appeals provided a lengthy summary of the facts adduced at trial leading to Petitioner's convictions:

According to the testimony of Darius Lewis, on January 25, 2010, he was at a friend's house playing cards when he received a telephone call from defendant Donte Leonard. Leonard asked Lewis to come to a strip club called "Cheetah's" and get him so that they could "hit this lick," which Lewis understood to mean rob someone.

Lewis, who was wearing a red sweater, a red hat, and black pants, drove his red Grand Prix to Cheetah's. Leonard was waiting outside in the parking lot. Leonard got into the car and said that they were "about [to] hit a lick on a stripper." Lewis also saw defendants Kyle Lester and Justin Sanford. Lewis testified that another individual, Jayson Holt, also came out of the strip club.

Lewis testified that he and Leonard were in the red Grand Prix and the others (Sanford, Lester, and Holt) were in a green Impala.... Lewis testified that they then waited for a woman to come out of the club. Apparently, the woman got into what Lewis described as a beige Tahoe. Lewis did not actually see the Tahoe or the Impala leave, but he believed that the Impala followed the Tahoe because Holt then called Leonard, who directed Lewis to catch up with the other vehicle. Once Lewis caught up on Dorchester Street, he pulled up in front of a house behind the green Impala. Lewis saw the beige-colored Tahoe and saw a woman "closing the door." []

Leonard got out of Lewis's car and got into the Impala. The Impala then turned around and parked on the corner. Lewis followed suit, and turned around too. Lester, Holt, Sanford, and Leonard got out of the Impala, and Lewis got out of his car. Lewis testified that "they was ready to go." Leonard had a gray gun, and Holt had a black gun. Lewis did not see Sanford or Lester with guns. Lewis testified, "We wasn't going to go in, then [Holt] said, 'Come on. We're going in ...' I'm, like, 'I ain't going.'" Lewis did not know if anyone else said "no," but he was the only one who turned around. Lewis testified that after he turned around, he went back to his car.

Lewis testified that the other four men, who all had masks on, then started to walk toward the house. Leonard and Holt went toward the back of the house, and Lester and Sanford walked toward the front of the house. Lewis got into his car, and as he was passing the house, he saw the police coming toward him. Lewis also heard the door to the house (608 Dorchester) being kicked in and heard, "Get down." ... Lewis never saw anyone actually enter the house or leave the house. The police then stopped and arrested Lewis.

* * *

Jennifer Locke testified that on the evening of January 24, 2010, and going into January 25, 2010, she was working her shift as a hostess at Cheetah's. Sanford, who had been at the club a couple times before that night, was there. According to Locke, Sanford repeatedly asked her where she lived and asked for her phone number, but Locke did not givehim either....

Locke left work at approximately 2:30 a.m. and proceeded to drive home. She was driving a tan 2001 Suburban. Before exiting I-75 onto Eleven Mile Road, Locke noticed a dark car next to her, but she was not concerned about it. But Locke noticed that as she turned down a street, the dark car turned on the next street. Then, when Locke was getting ready to turn onto her block, she saw the car again with its headlights off. As Locke pulled into her driveway, she saw the dark car drive past her house, still with its headlights off. As she got out of her car and headed to the front door of her house, she then saw a red car pull up in front of her house. The dark car had parked two houses down the street. At that point, Locke hurried to get into her house....

Inside the house were Locke's two youngest children, who were five and six years old, and the babysitter, Tonya Brown. Locke woke up Brown and told her that she thought someone had followed her home. Locke and Brown then looked out the window to "see if they'll [the men] go away." Locke saw the passenger from the red car talking to whoever was in the other dark car. The talk lasted for a minute and a half or two minutes. Locke then saw two men start to walk up to her house. One of the men was the man who had gotten out of the red car. Then, according to Locke, they turned around. They got back in the dark car, and the dark car turned around and parked on the corner. Locke believed that the red car moved as well, but was not certain. Locke thought they had left, so she opened her front door, but she then heard two doors, presumably car doors, slam. At that point, Locke saw two black men approaching her house, so she grabbed her children, hid in a closet, and called 911. Locke could not tell if these two men were the same ones she had seen before. At the same time, Brown ran into the bathroom and shut the door.

Locke heard a door break in and heard someone yell, "ATF. Get the [F* * *] down." Brown similarly testified that she heard two voices yelling, "ATF. Police. Get down." Locke heard more than one person, but she did not know if more than one person yelled. Locke heard someone upstairs. Brown heard someone downstairs and heard someone go upstairs. Locke, who was terrified, remained on the phone with 911.

According to Locke, the people were in the house for no longer than two minutes. Not long after hearing the people in the house, Brown saw police lights outside the bathroom window and saw an officer standing there, so she came out of the bathroom. Locke came out of the closet when she heard a police officer in her house. Locke heard the officers less than one minute after the men left.

Locke's purse and Brown's purse were missing, and Locke's laptop, which had been upstairs, was found downstairs on the kitchen floor. Both women's purses were returned, and nothing was missing from either purse.

At some point, Locke went with an officer to a police car that was parked in front of her house. Locke recognized the person seated in the back of the police car as Sanford because he had been in the club that night. Locke was unable to identify a person seated in another police car. Locke was unable to say whether she saw Leonard or Lester that night. Locke testified that she saw a person wearing a red sweatshirt or sweater, but it was unclear from her testimony which person she was referring to, and she never identified that individual at the scene. Locke never saw a gun that evening. Locke was unable to say for certain how many people were in the cars or were involved. Locke testified that there were more than two people in front of her house. On redirect examination, Locke testified that two doors had been broken in or forced open at the same time.

At approximately 3:00 a.m. on January 25, 2010, Officer Patrick Schneider received information via dispatch regarding suspicious circumstances at 608 Dorchester. As he was driving toward the location, he received information that there were four black males kicking in the front door at that address. As he turned onto Dorchester, he saw a vehicle coming toward him. Officer Schneider used his spotlight to illuminate the driver and saw one black male with no passengers. Officer Schneider then used his overhead lights to stop the vehicle. The car was a red 1997 Pontiac Grand Prix driven by Lewis....

Officer Lindsay Bowen also received a dispatch about a 911 call from 608 Dorchester on January 25, 2010. Someone had followed the callerhome and was kicking in the door. The suspect vehicles were believed to be a red sedan and a black Monte Carlo. Officer Bowen saw a dark-colored Chevy Impala parked on Farnum, east of North Dorchester. She pulled up behind the vehicle, put the spotlight on the vehicle, and walked up to the driver's side. No one was inside the vehicle. As she was looking in the driver's side, a black male, whom she identified as Sanford, was walking toward her. Officer Bowen ordered him to come to the car and put his hands on the

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